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DIVORCE

UNDER

THE HINDU MARRIAGE ACT, 1955

IN
FAMILY LAWI

SUBMITTED TO
MR. A. P. SINGH

SUBMITTED BY
ANOOP KUMAR (ROLL NO. 11)

Divorce is the psychological equivalent of a triple coronary bypass. After such a monumental assault on
the heart, it takes years to amend all the habits and attitudes that led up to it.
Mary Kay Blakely

DR. RAM MANOHAR LOHIYA NATIONAL


LAW UNIVERSITY
LUCKNOW

PREFACE
The aim of the project is to make the reader aware of the provisions of
divorce under the Hindu Marriage Act, 1955.
Thanks are due to the faculty of Family Law of Dr. Ram Manohar
Lohiya National Law University. The project could not have seen light in
the absence of the cooperation of the library of the University.
Above all, I would be thankful to my parents whose blessings have
helped me during the problems arisen in the preparation of the project.

21st Apr. 2008


ANOOP KUMAR

INDEX

INTRODUCTION
THEORIES REGARDING DIVORCE
GROUNDS FOR DIVORCE
DIVORCE BY MUTUAL CONSENT
CONCLUSION
BIBLIOGRAPHY

INTRODUCTION:

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a
right to get their marriage dissolved by a decree of divorce on more than one grounds
specifically enumerated in Section 13. Some of the grounds initially inserted were
substituted and some more grounds came to be added. It was in the year 1964 that sub
section (1A) was inserted by which either party to the marriage was also given a right to
apply for dissolution of marriage by a decree of divorce either where there has been no
resumption of cohabitation for the period specified therein, after the passing of the decree
for judicial separation; or where there has been no restitution of conjugal rights for the
period specified therein, after the passing of the decree for judicial separation; or where
there has been no restitution of conjugal rights for the period specified therein after the
passing of a decree for restitution of conjugal rights.

THEORIES REGARDING DIVORCE


The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955.
The Act recognizes two theories of Divorce: the fault theory and divorce by mutual
consent. Under the fault theory, marriage can be dissolved only when either party to the
marriage had committed a matrimonial offence. Under this theory it is necessary to have
a guilty and an innocent party and only innocent party can seek the remedy of divorce.
However the most striking feature and drawback is that if both parties have been at fault,
there is no remedy available.

Another theory of divorce is that of mutual consent. The underlying rationale is that since
two persons can marry by their free will, they should also be allowed to move out of their
relationship of their own free will. However critics of this theory say that this approach
will promote immorality as it will lead to hasty divorces and parties would dissolve their
marriage even if there were slight incompatibility of temperament.

Some of the grounds available under Hindu Marriage Act can be said to be under the
theory of frustration by reason of specified circumstances. These include civil death,
renouncement of the world etc. In this article we shall see that how these theories, owing
to change in social circumstances and change in attitude towards the institution of
marriage had failed to provide full justice in matrimonial cases.

GROUNDS OF DIVORCE

The Act originally recognised the fault grounds for obtaining the decree of divorce. For
this purpose nine fault grounds were mentioned in the Act. Sec. 13(1) lays down these
fault grounds, on which either the husband or wife could sue for divorce. Two fault
grounds have been dealt with in the sec. 13(2), on which wife alone, could seek the
decree of divorce. In 1976, the grounds for divorce by mutual consent have been
recognised through the provision of the sec. 13B.
Sec. 13 of the Hindu Marriage Act, 1955 says:

13. Divorce (1) Any marriage solemnized, whether before or after the commencement of the Act,
may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce
on the ground that the other party

(i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other
than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition; or

(ii)has ceased to be a Hindu by conversion to another religion ; or

(iii)

has been incurably of unsound mind, or has suffering continuously or intermittently from

mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.

Explanation In this clause

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of
mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether
or not including subnormality of intelligence) which results in abnormally aggressive or seriously
irresponsible conduct on the part of the other party and whether or not it requires or is susceptible
to medical treatment; or

(iv)

has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from veneral disease in a communicable form; or

(vi)

has renounced the world by entering any religious order; or

(vii)

has not been heard of as being alive for a period of seven years or more by those persons who

would naturally have heard of it, had that party been alive;

Explanation. In this subsection, the expression "desertion" means the desertion of the petitioner by
the other party to the marriage without reasonable cause and without the consent or against the
wish of such party, and includes the willful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate expression shall be construed accordingly.

(1A) Either party to a marriage, whether solemnized before or after the commencement of this
Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the
ground

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a
period of one year or upwards after the passing of a decree for judicial separation in a proceeding
to which they were parties; or

(ii)that there has been no restitution of conjugal rights as between the parties to the marriage for a
period of one year or upward after the passing of a decree of restitution of conjugal rights in a
proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the
ground

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband
had married again before the commencement or that any other wife of the husband married before
such commencement was alive at the time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition;

(ii)

that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or

bestiality; or

(iii)

that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or

in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or
under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree or
order, as the case may be, has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of such decree or order,
cohabitation between the parties has not been resumed for one year or upwards;or

(iv)

that her marriage (whether consummated or not) was solemnized before she attained the age

of fifteen years and she has repudiated the marriage after attaining that age but before attaining the
age of eighteen years.

Explanation. This clause applies whether the marriage was solemnized before or after the
commencement of the Marriage Law (Amendment) Act, 1976.

A decree of divorce can also be obtained through the mutual consent. The provision for
the same is given in the Sec. 13B of the Act.
13B. Divorce by mutual consent.(1) Subject to the provisions of this Act a petition for dissolution
of marriage by a decree of divorce may be presented to the District Court by both the parties to a
marriage together, whether such marriage was solemnized before or after the commencement of
the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately
for a period of one year or more, that they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made earlier than six months after the date of the
presentation of the petition referred to in subsection (1) and not later than eighteen months after
the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been
solemnized and that the averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree.

Under the Hindu Marriage Act, a party may file a petition for divorce and the marriage
may be dissolved by a decree of divorce on the following grounds:
1. ADULTERY: i.e. voluntary sexual intercourse with any person other than his/her
spouse. Though initially a divorce could be granted only if such spouse was living
in adultery, by the Marriage Laws Amendment Act, 1976, even a single voluntary
sexual act, with any other person other than the spouse is a sufficient ground for
divorce. But the present position under the Hindu Marriage Act is that it considers
1

even the single act of adultery enough for the decree of divorce . The intercourse
with the wives of preAct polygamous marriage will not amount to adultery. To
2

establish this ground in the court, circumstantial evidence will suffice . Under sec.
497 of the Indian Penal Code, the adultery has been made an offence. In both the
criminal law as well as the matrimonial law, it is essential that at the time of
offence a valid marriage was subsisting. There should be consent of the
respondent to constitute the ground of adultery. The burden of proof is on the
petitioner.
2. CRUELTY: Initially cruelty was a ground only for judicial separation, but now
forms a ground for divorce under the Amendment Act of 1976. The concept of
cruelty has changed from time to time and from society to society. In the early
1
2

Vira Reddy v. Kistamma, 1969 Mad. 235; Subbarma v. Saraswathi, (1966) 2 MLJ 263.
Sanjukta v. Laxmi, 1991 Ori. 39.

English law, the intention was needed to prove the element of cruelty. But
subsequently, it was omitted to be regarded as the ground for cruelty. Under the
Hindu Marriage Act also, intension has not been regarded as the ingredient of
cruelty. There is no precise definition of cruelty. The acts or conducts constituting
cruelty be so numerous that it is impossible to fit them into any watertight
3

compartment. In Bhagwat v. Bhagwat , the conduct of the husband to strangulate


the wifes younger brother and her younger son has been recognized as an act of
4

cruelty. In A. Jaya Chandra v. Aneel Kaur , the Supreme Court has held that the
cruelty should be in reference to the human conduct or behaviour. The conduct
should be of such nature that it can be concluded that the petitioner spouse can not
be expected to live with the other spouse. In the Indian law, like the English law,
it has been held that the cruelty must be pointed towards the petitioner. It has also
been held that if the wife is being illtreated by the members of the family in front
of the husband and he looks idly, it amounts to be the willful neglect, and thus
5

amounts to cruelty . Both mental cruelty as well as the mental cruelty has been
recognized as the grounder under the Act. The acts of physical violence, injury to
the limb or the health of the spouse, by the other spouse and even apprehension of
6

the same amounts to the cruelty . In the cases of mental cruelty, court has to back
intensity, gravity and stigmatic impact of cruel treatment, even if such cruel
7

treatment is meted out once . While arriving at such conclusion, regard must be
had to the social status educational level of the parties, the society they move in,
the possibility or otherwise of the parties never living together in case they are
3

1976 Bom. 18; Neetu Koeen v. Naveen Kohli, AIR 2004 All 1.
2005 SC 534.
5
Sunder v. Shantadevi, 1962 Ori 60.
6
Kausalya v. Wisakhiram1961 Punj 520; Sayal v. Sarla 1961 Punj 125; Saptmi v. Jagdish (1969) 87 CWN
520.
7
Vijay Kumar Ram Chandra Bhate v. Neela Bhate, AIR 2003, SC 2642.
4

living apart and all other relevant facts and circumstances, which it is neither
possible or desirable to set out exhaustively. In Praveen Mehta v. Inderjeet
8

Mehta , the court defined has defined mental cruelty as the state of mind.

3. DESERTION: This has been added as a ground for divorce by the Amendment
Act, though previously it was a ground for judicial separation. It includes the
desertion of the petitioner by the other spouse, without any reasonable cause and
without the consent of that other spouse. Without previous cohabitation, there can
9

not be any desertion . It is not merely the withdrawal from a place but also, from
the state of things. Under the Hindu Marriage Act, desertion fall under following
heads:

Actual desertion

Constructive desertion and

Willful neglect

4. CONVERSION: In order to obtain a divorce on this ground it should be proved


that such other party has converted. Mere professing or theoretical allegiance to
any other religion does not mean conversion. This ground has been added to the
act for obtaining divorce, as according to the Hindu Law, a marriage is not
dissolved by conversion by one of the parties. Therefore contrary to the belief that
conversion by itself resulted in divorce, a person now has to obtain a decree of
divorce under the Act.
5. UNSOUNDNESS OF MIND: Initially it was essential for a party to prove that
his/her spouse was incurably of unsound mind for a continuous period of three
years. However now this duration has been omitted. In order to obtain a decree
8
9

2002 SC 2582.
Savitri Pandey v. Premchand Pandey, 2002 SC 591.

under this ground it has to be proved that the spouse is affected to such an extent
that the party seeking divorce cannot be reasonably expected to live with him/her.
After the amendment of 1976 (Marriage Laws Amendment Act) the ground of
cruelty was not only accepted but also explained in the Act. It considers two
distinct mental elements namely: (1) unsoundness of mind and (2) mental
disorder.
6. VIRULENT AND INCURABLE LEPROSY. The amendment act of 1976 lays
10

down that the leprosy must be both virulent and incurable .


7. VENEREAL DISEASES IN COMMUNICABLE FORM. At present, it is a
ground for divorce if it is communicable by mature irrespective of the period for
which the respondent has suffered from it.
8. ENTERING NEW RELIGIOUS ORDER: by renouncing the world. This
requires the performance of certain ceremonies and the observance of certain
formalities. The petitioner has to prove that the other spouse has ceased to be a
Hindu. The conversion does not automatically dissolve the marriage. It provides a
11

ground for divorce .


9. PRESUMPTION OF DEATH: Under the Act, a person is presumed to be dead,
if he/she has not been heard of as being alive for a period of at least seven years.
The decree obtained under the Hindu Marriage Act would not be a decree of
death of the missing spouse, it would be only of the presumption of death, under
sec. 8 of the Indian Evidence Act, 1872.

10
11

Swarajya Lakshmi v. Padma Rao, AIR 1974 SC 165.


Lily Thomas v. Union of India, and othrs., AIR 2000 SC 1650.

DIVORCE BY MUTUAL CONSENT : when the husband and wife both agree that
their marriage cannot succeed, they may decide to get a divorce by mutual consent. It is
not necessary to give any reason to the court for such a divorce. They must file a divorce
petition in the District court. However the following should be considered:
Both the husband and wife are living separately from last 1 year.
Both of them had agreed that they cant stay together.
None of them has been forced to give the application.
The court will not take any action on the application for 6 months so that the husband and
wife can reconsider their decision. After a period of 6 months from the date of
presentation of the petition and not later than 18 months, if the petition is not withdrawn,
the court will grant the decree of divorce. The court must however be satisfied about the
bonafides and consent of the parties. If one of the parties withdraws the consent, the court
makes an inquiry in this regard and if there is no consent at the time of the enquiry, it
cannot pass the decree of divorce

CONCLUSION

The Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of
1955, there was no provision for divorce. The concept of getting divorced was too radical
for the Indian society then. The wives were the silent victims of such a rigid system. Now
the law provides for a way to get out of an unpleasant marriage by seeking divorce in a
court of law. The actual benefactors of such a provision are women who no longer have
to silently endure the harassment or injustice caused to them by their husbands.
However, to prevent hasty divorces, the law lays down certain restrictions and
grounds for obtaining a divorce. Before obtaining divorce, the parties may first obtain a
decree for judicial separation after which divorce may be obtained.

BIBLIOGRAPHY

th

Desai S.A., Mulla Hindu Law, 19 edition (2005), Vol2LexisNexis, New Delhi,

Diwan Paras, Dr. Paras diwan on Hindu Law, 2 edition(2002) Orient Publishing

nd

Company, New Delhi,

nd

Kusum, family Law Lectures Family LawI, 2 edition (2007) LexisNexis, New
Delhi,

th

Mayne, Hindu Law & Usage, 15 edition (2003) Bharat Law House, New Delhi,

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